The Anti-SLAPP Sequel: Updates From The Court Of Appeal On s. 137.1 Of The Courts Of Justice Act

On August 30, 2018, the Ontario Court of Appeal released six unanimous decisions, providing the first appellate interpretation of s. 137.1 of the Courts of Justice Act (the "Act"), introduced by Ontario's "anti-SLAPP" legislation.1 The Court of Appeal clarified that the purpose of s. 137.1 is to encourage expression on matters of public interest and to curtail litigation of doubtful merit that unduly discourages or seeks to restrict free and open expression on such matters.

Section 137.1 of the Act provides that a proceeding shall be dismissed on a motion by the defendant if the judge is satisfied that the following test has been met:

the defendant must establish that the proceeding "arises from an expression made by the person that relates to a matter of public interest" (s. 137.1(3) of the Act); the onus then shifts to the plaintiff. The proceeding will be dismissed unless the plaintiff establishes on a balance of probabilities that: there are grounds to believe that the proceeding has "substantial merit" (s. 137.1(4)(a(i)); there are grounds to believe that the defendant "has no valid defence in the proceeding" (s. 137.1(4)(a)(ii)); and the harm suffered by the plaintiff as a result of the defendant's expression is "sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression" (s. 137.1(4)(b)). The Ontario Court of Appeal has now provided further clarity with respect to the test under s. 137.1(4)(a)(ii) (no valid defence criterion) in three decisions released in late February and early March 2019.

New Dermamed Inc v Sulaiman

In New Dermamed Inc v Sulaiman, 2019 ONCA 141, the Court of Appeal clarified the requirement that the plaintiff establish that the defendant has no valid defence in the proceeding pursuant to the second branch of the test under s. 137.1 of the Act.

In this case, the respondent wrote and published four different reviews on a website associated with, and maintained by, Google, after obtaining laser resurfacing treatment on her cheeks from the appellant. The respondent complained that she had experienced volume loss and that her face looked "saggier" and had "melted off". The appellant threatened to sue the respondent if she did not permanently delete her comments. The appellant eventually commenced an action for libel, and the respondent brought a motion to dismiss the action under s. 137.1 of the Act.

The motion judge heard and decided the motion before the Court of Appeal released its judgments in 1704604 Ontario Ltd v Pointes Protection Association and its related cases. The motion judge concluded that the comments made by the respondent were expressions on a matter of public interest, and held that the appellant failed to establish that the respondent's defence of fair comment was invalid under s. 137.1(4)(a)(ii) of the Act. Accordingly, the motion judge dismissed the action.

The Court of Appeal...